Two New Models of Victims' Rights

Introduction

The punitive model of victims' fights affirms the retributive and expressive
importance of punishment and the need for the rights of victims to be considered
along with the rights of the accused. The non-punitive model of victims' rights
attempts to minimize the pain of both victimization and punishment by stressing
crime prevention and restorative justice. Discursively, both punitive and non-
punitive models of victims' rights promise to control crime and respect victims, but
the punitive model focuses all of its energy on the criminal justice system and the
administration of punishment while the non-punitive model branches out into other
areas of social development and integration. In short, the construction of models
provides an accessible language to discuss the actual operation of the criminal
process, the values of criminal justice, and the way that people think and talk about
criminal justice.

The two new models of victims' rights presented are punitive model of
victims' rights which relies upon the criminal sanction and punishment, and a non-
punitive model of victims' rights which stresses crime prevention and restorative
justice. Like Packer's obstacle course due process model and assembly line crime
control model, these models can also be summed up by evocative metaphors.

Non-Punitive Model of Victims’ Rights

The non-punitive model of victims' rights is represented by a circle which

symbolizes successful crime prevention through family and community-building and
successful acts of restorative justice. Both crime prevention and restorative justice
can draw individuals together as a community. The non-punitive model is more
holistic and can merge into general issues of health, well-being, and social justice,
whereas the punitive model promotes the criminalization and legalization of these
issues.

Another direction for victims' rights is away from the roller coaster of relying
on an inadequate criminal sanction and countering due process claims, and towards
the prevention of crime and restorative justice once crime has occurred. Both the
processes of prevention and restoration can be represented by a circle. One
manifestation of the circle may be the gated community with its own private police
force. Another example would be a successful neighborhood watch or the self-
policing of families and communities. Once a crime has occurred, the circle
represents processes of healing, compensation, and restorative justice.
Normatively, the circle model stresses the needs of victims more than their rights,
and it seeks to minimize the pain of both victimization and punishment.
Victimization studies revealing high levels of unreported crime are seen more as a
failure of social policy than a failure of the criminal justice system to control crime.
Unlike in the punitive version of victims' rights, unreported crime is not
automatically viewed with suspicion or alarm. Many crime victims are remarkably
non-punitive in their decision not to report crime to the police. To be sure, some
non-reporting is related to the inadequacy and inhospitality of the criminal justice
system and fears of retaliation from offenders. Some victims, however, do not
report crimes because they have found a better way to deal with their victimization
that may draw upon strategies such as avoidance, shaming, apologies, and informal
restitution. They may also judge the matter to be too minor or inconvenient to
justify official intervention, or prefer the privacy, time, and control of nonreporting.
Unlike in the punitive victims' rights, crime control, or due process models, the
victim's decision not to invoke the criminal process deserves respect unless it can
be shown that it only reflects coercion or the inadequacies of the present system.
"Only a 'victim-centered' model would prioritize the interests of victims at the
expense of the public interest. No-one has yet managed to develop a victim
centered model which is also consistent with due process or crime control. Victims
can define their own interests and their wishes are not pathologized as a product
and restorative justice once crime has occurred. Both the processes of prevention
and restoration can be represented by a circle. One manifestation of the circle may
be the gated community with its own private police force. Another example would
be a successful neighborhood watch or the self-policing of families and
communities. Once a crime has occurred, the circle represents processes of healing,
compensation, and restorative justice. Normatively, the circle model stresses the
needs of victims more than their rights, and it seeks to minimize the pain of both
victimization and punishment.
Victimization studies revealing high levels of unreported crime is seen more
as a failure of social policy than a failure of the criminal justice system to control
crime. Unlike in the punitive version of victims' rights, unreported crime is not
automatically viewed with suspicion or alarm. Many crime victims are remarkably
non-punitive in their decision not to report crime to the police. To be sure, some
non-reporting is related to the inadequacy and inhospitality of the criminal justice
system and fears of retaliation from offenders. Some victims, however, do not
report crimes because they have found a better way to deal with their victimization
that may draw upon strategies such as avoidance, shaming, apologies, and informal
restitution. They may also judge the matter to be too minor or inconvenient to
justify official intervention, or prefer the privacy, time, and control of nonreporting.
Unlike in the punitive victims' rights, crime control, or due process models, the
victim's decision not to invoke the criminal process deserves respect unless it can
be shown that it only reflects coercion or the inadequacies of the present system.
"Only a 'victim-centered' model would prioritize the interests of victims at the
expense of the public interest. No-one has yet managed to develop a victim
centered model which is also consistent with due process or crime control. Victims
can define them own interests and their wishes are not pathologized as a product of
learned helplessness. The prevalence of non-reporting suggests that a non-punitive
victims' rights model shares with the due process model considerable skepticism
about the utility of the criminal sanction.
A non-punitive approach is not deferential to traditional crime control
strategies and agents, but unlike the punitive model de-centers their importance.
Families, schools, employers, town planners, insurers, and those who fail to provide
social services and economic opportunities are also responsible for crime. The
challenge is to jump traditional jurisdictional lines and not to diffuse responsibility
too thinly. Crime prevention can be achieved through social development to identify
and provide services for those at risk of crime. Early childhood intervention
targeting disruptive and anti-social behavior and poor parenting skills may help
prevent future crime, as well as blur bright line distinctions between victims and
offenders. At the same time, more immediate forms of crime prevention including
target hardening, better lighting, information exchange among bureaucracies, and
changing high risk activities also play a role. Public health approaches focus much
more on the victim than do traditional criminal justice responses which attempt to
deter and punish offenders. Unlike in the punitive model, there is little concern
about blaming offenders or victims. Following a public health approach, the non-
punitive model recognizes that offenders and victims often come from similar
populations and that these populations are disproportionately exposed to harms
other than crime. Crime prevention may evolve into a more comprehensive
approach to safety, security, and well-being which does not make hard and fast
distinctions between the risk of victimization by crime and other harms and risks.
Once a crime has been committed, the focus is on reducing the harm it
causes through healing, compensation, and restorative justice. The circle can be
closed without any outside intervention as crime victims take their own actions to
heal and attempt to prevent the crime in the future. More prosaically, the
circle of restoration may simply be a claim on an insurance policy which returns the
money the policyholder invested in insurance premiums. When the victim does
report crime, the circle can be represented by a process of restorative justice which
allows the offender to take responsibility for the crime and attempt to repair the
harm done to victims. This is often achieved through informal proceedings such as
Aboriginal healing circles, family conferences, and victim-offender reconciliation
programs in which all the actors are seated in a circle. All these interventions
are united by their concern for the welfare of both offenders and victims, informal
non-punitive approaches, and wide community participation. The key players in
these circles should be the victim, the offender, and their families and supporters-
not police, prosecutors, defense lawyers or judges who may appropriate their
dispute. Victims play the most crucial role, and this gives them some of the power
and autonomy that was taken away by the crime. They have the power to decide
whether to accept apologies and plans for reparation. In a punitive victims' rights
approach, however, they can only make representations to legislators, judges, and
administrators who retain the ultimate power to impose punishment.
Restorative justice focuses on factual guilt but explores the reasons why the
offender has committed the offense. One reason may be past victimization or
deprivation, but this does not produce an "abuse excuse" which by leading to a
verdict of acquittal denies the suffering of the immediate victim. Restorative justice
also marginalizes due process rights by encouraging the offender to accept
responsibility for the offense rather than requiring the state to prove beyond a
reasonable doubt that the offender committed the crime and that the state
complied with the offender's legal rights. There is, however, no permanent
opposition to due process and it is important that all participants be treated fairly
and be allowed to speak. Restorative justice works best if offenders voluntarily
participate and accept responsibility for the offense. Offenders already do this in
many cases when they plead guilty, and they should be even more willing to do so
in a less punitive system. The greater challenge will be persuading victims to
participate because they may fear or disdain the offender or have unrealistic
expectations about the benefits of a formal trial. Some offenders and/or victims will
not participate, and trials will be necessary. When offenders do not believe that
their activities should be criminal, some of these trials may produce dashes
between due process and victims' rights. Although the resulting new political cases
are at the core of punitive models of victims' rights, they are at the periphery of a
non-punitive one.
Restorative justice provides a genuine alternative to crime control or due
process. The latter models focus on the state, either as the primary victim of crime
or the perpetrator of rights violations, and largely act upon offenders and victims.
The crime control model imposes punishment on the offender while giving
the victim at best indirect recognition and no tangible repair. It embraces a model
of justice which is "pre-occupied with the past to the detriment of the future." The
due process model in turn encourages the offender to deny responsibility for the
crime and because of its professional and adversarial orientation alienates the
offender, the victim and the larger community. It focuses on rights to the exclusion
of duties, including the duty to repair the harm.
Although some feminists lend support to the punitive model by their focus on
criminal law reform to increase the likelihood of punishment, others eschew
punitive strategies. Carol Smart has criticized criminal justice reforms which "make
women embrace their victim status more warmly." Although violence against
women cannot be ignored, Smart would be skeptical of punitive strategies which
empower police and prosecutors and link women and children as passive victims.
Laureen Snider similarly has argued that "by focusing feminist energies on villains
and victims, political and theoretical attention is directed away from tactics with
greater potential to empower and ameliorate.” She advocates a move away from
the emphasis on "injuries and punishment which has its origins in anger” towards
"non-punitive actions that directly and indirectly alleviate human suffering and
promote healing rather than punishment." Feminists who stress the importance of
relationships also could support restorative justice because of its emphasis on
"informality, an emphasis on familial relationships and emotional maturity rather
than strict notions of guilt." Some feminists even support prison abolition on the
basis that prison does not control crime and renounces caring for inmates. This
approach is, however, controversial and many other feminists are concerned that
restorative justice will excuse male violence and reproduce the subordination
of women.
As demonstrated by their frequent decisions not to report crime, victims can
be non-punitive, and their practical interests may not always be in punishment.
Protecting victims through crime prevention and restorative justice could create
genuine alterative to crime control and due process. These changes will probably
not be heralded by a legislative act or ad judicial decision. They will generally occur
at the local level with increased reliance on public and private forms of crime
prevention, victim-offender reconciliation, family conferencing, and Aboriginal
justice. These interventions have the potential to take power and control away
from the criminal justice professionals who dominate the crime control and due
process models. Because it involves victims and communities and does not deny
that crime has occurred, restorative justice may have a better decriminalization
potential than due process.
 A non-punitive model of victims' rights may also address some concerns
about the use of the term "victim." A focus on punishment tends to concentrate on
what happened in the past and define a person by his or her past victimization. On
the other hand, concerns about restoration and prevention look to the future and
make room for healing, empowerment, forgiveness, and a richer and dynamic
identity for crime victims that is not limited by being a victim who demands
increased punishment. The use of punishment to express solidarity with victims
often shatters a social consensus about the need to respect those who have
suffered harms and wrongs. Very few can ignore the need to support those who
have lost their loved ones to murder, but reasonable people can disagree about the
amount of punishment that is appropriate or necessary or whether victim impact
statements should be allowed in capital cases. Few people would disagree with the
urgent need to respond to widespread sexual and domestic assault of women and
children, but there can be reasonable disagreements about restrictions on the
accused's right to call evidence and mandatory charge policies. Less punitive
approaches can give those who have been victimized in the past more power and
support than crime control measures which, while increasingly undertaken in the
name of victims, often affirm the powers of criminal justice professionals and
frequently collide with due process claims.

Conclusion

Non-punitive approaches avoid Packer's mistakes by not relying on

punishment to control crime, by treating people fairly and as responsible citizens in
non-adversarial proceedings, and by seeking to reconcile the interests of offenders,
victims and their communities through restorative justice and crime prevention.
Non-punitive model of victims' rights attempts to minimize the pain of both
victimization and punishment by stressing crime prevention and restorative justice.
Discursively, both punitive and non-punitive models of victims' rights promise to
control crime and respect victims, but the punitive model focuses all its energy on
the criminal justice system and the administration of punishment while the non-
punitive model branches out into other areas of social development and integration.

Reference:
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?
article=7000&context=jclc